A place to find news updates, legal analysis, and all official documents related to the various constitutional challenges to the Patient Protection and Affordable Care Act (as amended by the Health Care and Education Reconciliation Act of 2010)

Thursday, March 3, 2011

A small (but interesting) point of law related to the order

In reading Judge Vinson's order, a small (but perhaps important) question occurred to me. I don't know the answer, but perhaps someone out there does.

The second factor to consider in deciding whether a stay is warranted is whether the applicant will suffer irreparable injury. In conducting this analysis, Judge Vinson--it seems rightly--considered the potential injury to both sides: what would be the injury to the United States from a complete halt to implementation, and what would be the injury to the plaintiffs from the Act's continued implementation.

In analyzing this second question--the potential harm to the plaintiffs from continued implementation--Judge Vinson did not just inquire into the injury from continued implementation of the minimum coverage provision (which is not set to go into effect until January 1, 2014). Rather, he asked whether the plaintiffs would be harmed by the continued implementation of any part of the Act (99% of which, all agree, are perfectly constitutional).

My question is this: when the sole reason these other portions of a statute have been declared void are because the one provision declared unconstitutional has been determined to be unseverable from the rest of the Act, is it appropriate in evaluating the "irreparable injury" to the plaintiff to consider the portions of the Act that have effectively been judged constitutional?

Again, I do not know the law here. But at first blush, that seems like a sort of "bootstrapping" that goes beyond the scope of the relevant "injury" for purposes of the litigation.

P.S. Just to be clear, this issue is purely academic, at least for now, given that Judge Vinson granted the stay regardless (that is, even considering this harm to the plaintiffs that arguably should not have been within the scope of the inquiry).